To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.

Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”

While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.

Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.

If you are hiring any employees, this is just a quick reminder that you need to start using the new I-9 form to confirm your new worker’s eligibility to be employed in the United States.

The new I-9 form was released on November 14, 2016 (look for that date on the form to verify that you are using the most recent one). You already can be using the new form, but it is mandatory that you are using that new form by January 22, 2017. My suggestion for making it easy on yourself is to begin using the new form today, or at least no later than January 1, 2017, so that you start the new year off right.

You do not have to update any of your completed I-9s on current employees with the new form. It is only mandatory that you start using the new I-9 with employees who are hired beginning in January 2017.

As you know, employers must assure an I-9 is completed on each new employee hired (citizen or otherwise) to document identity and authorization to legally work in the United States. The new employee must bring the proper forms of identification and work authorization so that you can complete the I-9 by the third business day of employment, or you can no longer employ that worker.

Mistakes happen on an incredibly frequent basis while filling out I-9 forms and employers get penalized substantially if Immigration and Customs Enforcement (“ICE”) audits an employer’s forms. Here is a guide to the most common mistakes and how to avoid them.

Hiring in Texas can be done in a very efficient and effective manner that reduces your chances of violating employment laws if you follow this simple hiring checklist. While large employers may need to add many more steps, I have found in 25+ years of law practice that many small employers aren’t even doing these simple steps, but should be:

Is one well-trained centralized manager with human resources experience doing the hiring instead of a group of supervisors who might ask the wrong questions?

Do you have a job description of the job for which you are hiring so you know the job-related qualifications?

Does the interview focus only on job-related qualifications and not personal information?

Do you stay away from open-ended questions like “Tell me about yourself”, which could elicit all kinds of information from the applicant that could be considered the basis of a discrimination claim?

Is the interviewer using an outline so that each applicant is asked the same questions and you can compare apples to apples rather than relying on the interviewer’s conversation skills and “gut reaction”?

Do not ask questions in the interview about the following topics. If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job duties, don’t ask it.

Race or color (photographs should not be requested)

Gender or marital status or sexual orientation

Whether applicant has young children, what his/her daycare arrangements are, or other family questions.

Age, including date of birth or when the applicant graduated from high school

Religion, including “Where do you go to church?” and “What do you do with your Sundays?”

Union membership or affiliation

Criminal arrests or convictions (you can run a background check if you decide to actually offer the job, but you must comply with the Fair Credit Reporting Act in obtaining the background check)

National origin or ethnicity (don’t ask about an applicant’s birthplace, accent, parentage, ancestry).

Citizenship (only inquire into an applicant’s eligibility to work in the United States, not their citizenship).

Education beyond what is necessary for the job (inflated educational requirements can have a chilling effect on minority applicants; therefore only ask educational questions that are relevant to the actual job responsibilities).

What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating).

Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination).

Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act).

Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)

Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination).

Do not ask the following questions in an interview that could violate the Americans with Disabilities Act:

Whether an applicant needs a reasonable accommodation to perform the job, unless the disability is apparent or the applicant voluntarily divulges it.

Details of an applicant’s worker’s compensation history.

Whether the applicant can perform “major life activities,” such as standing, lifting and walking.

Whether the applicant has any physical or mental impairments.

Whether the applicant is taking prescription medication or any other lawful drugs.

If the applicant has used illegal drugs in the past or has ever been addicted to drugs.

Whether the applicant has participated in an alcohol or drug rehabilitation program.

How frequently the applicant consumes alcoholic beverages.

Certain questions are permissible under the ADA:

Whether an applicant can perform the essential functions of the job.

How the applicant will perform the essential functions of the job, if all applicants are asked this question.

Whether an applicant needs reasonable accommodation for the hiring process.

Whether an applicant can meet the employer’s attendance requirements.

Whether an applicant has ever been convicted of driving under the influence of alcohol or drug if driving is an essential duty of the job.

Whether an applicant is a current illegal drug user (drug testing the successful applicant after a conditional offer of the job is the best way to handle this).

Employers are generous but sometimes uninformed in December, handing out holiday gifts and bonuses without realizing the legal consequences. As an employer, you have to consider the tax and compensation consequences of your gifts. Bah Humbug!

The Fair Labor Standards Act divides bonuses into two categories: discretionary and non-discretionary. Discretionary bonuses must be decided in the employer’s sole discretion. They cannot be earned by any formula or used as a motivator or incentive. If they are truly discretionary (which is up to the employer to prove), cash bonuses do not have to be rolled into an hourly employee’s regular rate of pay on which overtime is calculated.

Holiday bonuses may be discretionary if they just fall like manna from heaven onto the employee without the employee knowingly working towards the bonus. Generally, the amounts, timing and basis for the discretionary bonus should not be announced in advance to avoid the appearance of being an incentive.

Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized. Continue reading NLRB Crackdown on Employee Handbooks→

Texas employers traditionally have not had to worry about being accused of discrimination on the basis of sexual orientation, because there is no federal or Texas law that makes sexual orientation discrimination illegal. Additionally, Texas employers previously have not had to provide spousal benefits, such as family coverage under a group health care policy, to same sex spouses.

The laws of Texas have not changed, but the tide is turning for all American employers, and Texas businesses are not immune to that trend. Last month, the U.S. Supreme Court effectively legalized gay marriage in 11 more states when the court declined to hear appeals of lower court decisions finding state laws banning same sex marriage unconstitutional. So recently, gay couples received marriage licenses and were married in several conservative states including Oklahoma, Colorado, North Carolina, Virginia, and even Utah.

At the same time, the EEOC and several courts have been wrestling with Title VII gender discrimination claims by lesbian, gay, bisexual and transgendered (LGBT) employees who say their employers have discriminated against them. Eighteen states and the District of Columbia have laws explicitly protecting LGBT employees. 91 percent of Fortune 500 companies already prohibit this kind of discrimination. But in the states where sexual orientation laws are not in place, employers can expect the EEOC and disgruntled workers to file cases to try to change the law through the court system if not the legislature.

Finally, President Obama has issued an executive order requiring that businesses that do at least $10,000 in federal work annually have to protect LGBT employees from discrimination. This affects an estimated 22 percent of the civilian workforce nationwide and many employers in Texas.

All of this means that Texas employers are engaging in very risky behavior if the employer doesn’t protect its employees from discrimination on the basis of sexual orientation. In addition, many Texas employers have retail locations or offices in the 30 states that recognize same sex marriage. Therefore, consistency in employment policies means that most of these employers should go ahead and change the definition of “spouse” in their policies and insurance plans to include same sex spouses regardless in which state the employee resides.

You may not agree politically with these changes sweeping the country, but as a prudent employer, you should consider whether the wise business decision for your company is to protect LGBT employees and treat them equally when it comes to benefits.

When an employee leaves your company (if you employ 20 or more people), he or she is entitled for at least 18 months to continue any group health insurance coverage that you provide to your employees. This continuation coverage requires that the employee pay the insurance premiums to remain on your group health plan. Therefore the employee must be notified when he leaves your employ of the rights he has to elect to continue that coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). The same election notice must be provided to the employee or his/her dependents if the employee dies, the employee divorces, the employee becomes entitled to Medicare, or a dependent child ceases to be considered a dependent under the health plan.

On May 8, 2013, the Department of Labor updated the election notice you must provide to your employees under COBRA when these events happen. The notice has to be provided to the employee within 14 days of when the plan administrator (you as the employer or an administrator you pay to take care of this function) receives notice that one of the these events has occurred. The new election notice and a redlined version showing what has been changed from the notice you are now using is available on the DOL’s website at: http://www.dol.gov/ebsa/COBRA.html. COBRA carries a stiff daily monetary penalty for employers or administrators who do not timely and properly provide these election notices, so you should start using the new notice immediately.

The DOL also publishes a guide to help you understand and administer COBRA: http://www.dol.gov/ebsa/pdf/cobraemployer.pdf. However, because COBRA can be tricky, I prefer that my employer clients pay the little extra fee per month to have your insurance company act as your COBRA administrator and take responsibility to assure that the deadline and notice requirements are met.